Full Judgment Text
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CASE NO.:
Appeal (civil) 5458 of 2004
PETITIONER:
Kishore Chandra Samal
RESPONDENT:
The D.M,Orissa State Cashew Development Corpt.Ltd.
DATE OF JUDGMENT: 17/11/2005
BENCH:
ARIJIT PASAYAT & R.V. RAVEENDRAN
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
Appellant calls in question legality of the judgment
rendered by a Division Bench of the Orissa High Court
setting aside the award of Labour Court, Bhubaneswar dated
29.10.1997 passed in I.D. Case No.90 of 1994 which directed
the appellant-Corporation to reinstate the present appellant
with full back wages.
Factual background in a nutshell is as under:-
The case of the appellant was that he was appointed as
Junior Typist on N.M.R. basis by the respondent with effect
from 12.7.1982. He continued in the said post for more than
one year. All of a sudden another order was issued
appointing him for 44 days with effect from 1.10.1983. On
its expiry on 15.11.1983 another appointment order was
issued on 5.12.1983 for a fixed period giving effect from
16.11.1983. Thereafter, he was allowed to continue for
about 8 months. Later he was appointed on ad hoc basis in
the usual scale of pay of Rs.255-5-285-EB-7-306-12-390/-
with effect from 23.7.1985. Thereafter without any rhyme or
reason, he was again kept in N.M.R. on payment of Rs.10/-
per day for a period of 90 days from 1.12.1985 to 28.2.1986.
Thereafter he was allowed to continue from 29.6.1986 to
25.9.1986 and further from 27.9.1986 to 24.12.1986.
Thereafter, he was allowed to continue without any break
till 11.8.1989. Alleging that refusal of work beyond
11.8.1989 amounting to retrenchment, he raised dispute
giving rise to the above reference.
The respondent’s case before the Labour Court was that
the appellant was working on N.M.R. basis as a Typist with
effect from 12.7.1982. He was appointed for a specific
period on daily wage basis. On consideration of the
representation for further engagement and having regard to
the requirement, he was engaged again and again on daily
wage basis for specific period. The last order of
appointment on N.M.R. basis was issued to him on 28.4.1989.
Thereafter no further extension was given. Thereafter, his
service automatically ceased and it is not a case of
retrenchment.
The Labour Court on perusal of the evidence on record
held that the appellant served continuously for many years
covering the requisite period of continuous service in a
calendar year. Although there is no evidence that the post
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of Typist was a permanent one, he was engaged from time to
time and at the time of termination as the provisions of
Section 25-F of the Industrial Disputes Act, 1947 (in short
the ’Act’) had not been complied with, termination of his
service is illegal and unjustified. On the basis of the
said finding, the Labour Court directed the appellant to be
reinstated in his former post.
The High Court accepted the stand of the respondent-
Corporation that the appointment of the writ petitioner
(appellant herein) was on N.M.R. basis for a fixed period of
time on the basis of payment at different rates. The
contractual period of engagement ended on 3.5.1989 and there
was no renewal thereafter. Since the engagement was for a
fixed period, the High Court held that the award of the
Labour Court was to be set aside.
In support of the appeal, learned counsel for the
appellant submitted that the High Court failed to notice
that the period fixed was a camouflage to avoid
regularization. Reliance was placed on a decision of this
Court in S.M. Nilaikar and Ors. v. Telecom District Manger,
Karnataka (2003 (4) SCC 27) where it was held that mere
mention about the engagement being temporary without
indication of any period attracts Section 25-F of the Act if
it is proved that the concerned workman had worked
continuously for more than 240 days.
The position of law relating to fixed appointments and
the scope and ambit of Section 2(oo)(bb) and Section 25-F
were examined by this Court in several cases. In Morinda
Coop. Sugar Mills Ltd. v. Ram Kishan and Ors. (1995 (5) SCC
653) it was observed as follows:
"4. It would thus be clear that the
respondents were not working throughout
the season. They worked during crushing
seasons only. The respondents were taken
into work for the season and consequent
to closure of the season, they ceased to
work.
5. The question is whether such a
cessation would amount to retrenchment.
Since it is only a seasonal work, the
respondents cannot be said to have been
retrenched in view of what is stated in
clause (bb) of Section 2(oo) of the Act.
Under these circumstances, we are of the
opinion that the view taken by the
Labour Court and the High Court is
illegal. However, the appellant is
directed to maintain a register for all
workmen engaged during the seasons
enumerated hereinbefore and when the new
season starts the appellant should make
a publication in neighbouring places in
which the respondents normally live and
if they would report for duty, the
appellant would engage them in
accordance with seniority and exigency
of work."
The position was re-iterated by a three-Judge Bench of
this Court Court in Anil Bapurao Kanase v. Krishna Sahakari
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Sakhar Karkhana Ltd. and Anr. (1997 (10) SCC 599). It was
noted as follows:
"The learned counsel for the appellant
contends that the judgment of the High
Court of Bombay relied on in the
impugned order dated 28.3.1995 in Writ
Petition No.488 of 1994 is perhaps not
applicable. Since the appellant has
worked for more than 180 days, he is to
be treated as retrenched employee and if
the procedure contemplated under Section
25-F of the Industrial Disputes Act,
1947 is applied, his retrenchment is
illegal. We find no force in this
contention. In Morinda Coop.Sugar Mills
Ltd. v. Ram Kishan, in para 3, this
Court has dealt with engagement of the
seasonal workman in sugarcane crushing;
in para 4 it is stated that it was not a
case of retrenchment of the workman, but
of closure of the factory after the
crushing season was over. Accordingly,
in para 5, it was held that it is not
’retrenchment’ within the meaning of
Section 2(oo) of the Act. As a
consequence the appellant is not
entitled to retrenchment as per clause
(bb) of Section 2(oo) of the Act. Since
the present work is seasonal business,
the principles of the Act have no
application. However, this Court has
directed that the respondent management
should maintain a register and engage
the workmen when the season starts in
the succeeding years in the order of
seniority. Until all the employees whose
names appear in the list are engaged in
addition to the employees who are
already working, the management should
not go in for fresh engagement of new
workmen. It would be incumbent upon the
respondent management to adopt such
procedure as is enumerated above."
Recently, the question was examined in Batala Co-
operative Sugar Mills Ltd. v. Sowaran Singh (2005 (7)
Supreme 165)
Section 2(oo) of the Act reads as follows:
"Section 2(oo) "retrenchment" means the
termination by the employer of the service
of a workman for any reason whatsoever,
otherwise than as a punishment inflicted by
way of disciplinary action, but does not
include -
(a) ......
(b) ......
(bb) termination of the service of the
workman as a result of the non-removal of
the contract of employment between the
employer and the workman concerned on its
expiry or of such contract being terminated
under a stipulation in that behalf
contained therein"
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The decision in S.M. Nilaikar’s case (supra) has no
application because in that case no period was indicated and
only indication was the temporary nature of engagement. In
the instant case in all the orders of engagement, specific
periods have been mentioned. Therefore, the High Court’s
order does not suffer from any infirmity.
The High Court had noted that its order would not stand
in the way of Corporation considering the case of the
workman for appointment. It is submitted by learned counsel
for the appellant that representation was made in this
regard which has been turned down. Learned counsel for the
respondent-Corporation submitted that the representation was
for a permanent absorption. Since there was no post vacant,
the representation was rejected. The dismissal of the
present appeal shall not stand on the way of the Corporation
engaging appellant taking into account his experience and
while considering the appellant’s case the claims of others
making similar claims shall be considered in proper
perspective.
Appeal is allowed. Costs made easy.